The Straight Dope

A while ago I saw a tagline on alt.fan.cecil-adams from someone who was darn proud to be a member of the National Rifle Association. I asked if the Second Amendment to the U.S. Constitution still holds water today since the intent was to provide guns and protection against the other side of the puddle. This sparked a huge debate on the Net about the right to bear arms with, as usual, both sides claiming they are right. I figured it's time to take it to the top and ask you to settle it all for us. Is it time to reevaluate the Second Amendment? If only so that those who argue can at least now argue an up-to-date amendment?

--Colin Joyce, Scranton, Pennsylvania

You mean well, Colin, but you couldn't write a proper question to save your soul. What you want to know is what the framers of the Bill of Rights intended the Second Amendment to mean, and whether their intention has any continuing legal relevance in view of the (supposedly) dramatically altered social landscape upon which we gaze today. The answer to the second question is easy: yes, else why have a constitution? But the answer to the first is knottier.

Historically there have been two interpretations of the Second Amendment: the states-rights argument and the individual-rights argument. The states-rights view is that the Second Amendment merely guarantees the states the right to organize militias and citizens the right to join. (Militia here means any armed force raised for the common defense, not just the national guard.) The individual-rights view is that the Second Amendment means what it says: citizens have the right to keep and bear arms. The states-rights view currently prevails in federal case law, but the individual-rights view is probably closer to the framers' intent. A reasonable restatement of the amendment might go something like this: "Since we as a nation have found it necessary to organize citizen militias to defend against tyranny and may be compelled to do so again, and since these militias are necessarily composed of volunteers supplying their own weapons, the right of individuals to keep and bear arms shall not be infringed."

OK, some gun-control advocates will concede, but that merely means infringed by the federal government. As an article in Mother Jones put it, "The legal precedents are clear: Almost any state or local gun-control action is fine; the Second Amendment does not apply. On the federal level, only laws interfering with state militias are prohibited."

This is a crock. The legal precedents are far from clear. They are also pathetically sparse, suggesting a reluctance on the part of the courts and the legal community generally to deal with the issue. (An enlightening article in the Yale Law Journal a few years ago was titled "The Embarrassing Second Amendment.") In almost every other aspect of law the Bill of Rights has been broadly construed to restrain the states as well as the federal government. Few today would argue that states can abrogate the right to free speech guaranteed by the First Amendment. Yet many are prepared to let them gut the second, on the grounds that the framers did not foresee urban violence on the scale we face now. Maybe they didn't, but so what? Civil-liberties advocates don't accept urban violence as an excuse to curtail other constitutional rights, such as the protection against unlawful search and seizure.

Accepting the Second Amendment at face value doesn't mean you can't regulate gun ownership. No one can argue plausibly that the authors of the Bill of Rights meant to make the authorities powerless to disarm criminals. The framers likely would have objected to a blanket proscription of handguns, which they would have seen as legitimate weapons of self-defense, and arguably they would have opposed a ban on assault rifles, the AK-47 being to today's oppressed what the long rifle was to those of 1776. But local gun registration presents no obvious constitutional problems. Criminals don't register guns of course; that's the point. Arrest a carful of mopes with guns and no permits and you have a good ipso facto case for throwing the book at them. How much better to approach gun control on a reasonable basis rather than make a religious war out of it.

Is there something you need to get straight? Cecil Adams can deliver the Straight Dope on any topic. Write Cecil Adams at the Chicago Reader, 11 E. Illinois, Chicago 60611, or E-mail him at cecil@chireader.com.

Art accompanying story in printed newspaper (not available in this archive): Illustration/Slug Signorino.